Monday, 14 October 2013

State Immunity

Does the EU Charter of Fundamental Rights oblige tribunals to disapply provisions of the State Immunity Act 1978 which would otherwise render employment law claims inadmissible in a dispute between private parties?

Yes, says the EAT inBenkharbouche v Sudan. Provisions of primary law which conflict with a general principle of EU law must be disapplied where the substantive rights in issue fall within the material scope of EU law.

In joined appeals, two Claimant domestic workers brought claims against the embassies of Libya and Sudan in London under the Working Time Directive, for discrimination and unfair dismissal inter alia. When their claims were dismissed under Sections 16 and 4 of the SIA, they argued this breached their right of access to a court or tribunal under Article 6 ECHR and (equivalent protection under) Article 47 of the EU Charter.

The President of the EAT agreed that the provisions were contrary to Art 6, but found that it is not possible to read Art 6 compatibly with the SIA under Section 3 of the Human Rights Act 1998. However, recent EU case lawC-555/07 Kücükdeveci v Swedex GmbH & Co KGandC-617/10 Aklagaren v Franssonconfirmed that where a general and fundamental principle of EU is concerned, such as the right to a fair hearing, UK courts must disapply a provision of domestic law which stands in its way, regardless of whether the dispute takes place between private persons. Langstaff P ruled that the obligation is limited to the material scope of EU law, i.e. rights under statutory provisions which implement Directives or Regulations.

Therefore, claims relating to discrimination and working time were caught, but claims relating to unfair dismissal and minimum wage would have to be pursued via a declaration of incompatibility under the Human Rights Act 1998 only.

Due to the far-reaching impact of the ruling, permission to appeal was granted to all parties.

Daniel Barnett is a barrister at Outer Temple Chambers, with over 15 years' experience defending companies facing employment tribunal claims and associated commercial disputes. He is listed as a leading employment barrister in the ‘Legal 500′, and described in the Times Law Supplement as having “carved out a strong reputation”.

Daniel regularly advises and represents large and small businesses in discrimination claims, TUPE problems, team moves, removal of confidential business information, and unfair dismissal disputes. He has been appointed as employment law advisor to Acas since 2004, and is the author or co-author of seven legal textbooks.